Höfner and Elser v Macrotron GmbH
The concept of an undertaking covers every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, so a public employment agency could be an undertaking.
Facts
Under German law, the Federal Employment Office had a monopoly on employment placement, including the recruitment of business executives. Two recruitment consultants, Mr Höfner and Mr Elser, found a candidate for a sales director post with a company, Macrotron, which then refused to pay their fees, arguing that the contract was void because it breached the statutory monopoly. The consultants argued that the monopoly was contrary to the competition rules of the EEC Treaty.
Legal principle
The Court of Justice held that, in the context of competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. Employment procurement is an economic activity, which has not always been carried out by public entities, so the public employment agency was an undertaking. A member state which granted such an agency an exclusive right, in circumstances where the agency was manifestly incapable of satisfying demand for executive recruitment, would breach the Treaty by creating a situation in which the agency would inevitably abuse its dominant position.
Related cases on undertakings, agreements and concerted practices
- A Ahlström Osakeyhtiö v Commission (Woodpulp II) Joined Cases C-89/85 and others, [1993] ECR I-1307
- Akzo Nobel NV v Commission Case C-97/08 P, [2009] ECR I-8237
- Anic Partecipazioni SpA v Commission Case C-49/92 P, [1999] ECR I-4125
- Argos Ltd v Office of Fair Trading; JJB Sports plc v Office of Fair Trading [2006] EWCA Civ 1318
- Bundesverband der Arzneimittel-Importeure eV v Bayer AG (Adalat) Joined Cases C-2/01 P and C-3/01 P, [2004] ECR I-23
- Coöperatieve Vereniging Suiker Unie UA v Commission Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, [1975] ECR 1663
- Eturas UAB v Lietuvos Respublikos konkurencijos taryba Case C-74/14, EU:C:2016:42
- FENIN v Commission Case C-205/03 P, [2006] ECR I-6295
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